Jersey Unreported Judgments

[2006]JRC135

royal court

(Samedi Division)

27^th September 2006 

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Brocq and Newcombe.

 

Advocate D. J. Benest for the Appellant

Miss S. C. Nicolle Q.C., H.M. Solicitor General for the Respondent

judgment

deputy bailiff:

1.        This is an appeal by Almondale Limited against the refusal on 30^th September 2005 of the Environment and Public Services Committee ("the Committee") of an application by Almondale to develop Field 621, La Route du Noirmont, St Brelade, by the construction of two dwelling houses.  Although the respondent is now technically the Minister for Planning and Environment we propose for ease of reference to refer throughout to the Committee. 

History of the application

2.        Field 621 is on the west side of La Route du Noirmont.  It is approximately 1½ vérgees in area and slopes over 4 metres from east to west.  To the north, south and east of the site lies existing housing.  Viewed from La Route de Noirmont there are distant views across the site to the sea and La Cotte headland.

3.        Under the 1987 Island Plan, Field 621 was part of the Green Zone.  However in the 2002 Island Plan it was re-zoned into the 'Built-Up Area' where, subject to compliance with various policies to which we shall refer shortly, development would normally be permitted. 

4.        In July 2005 the States approved a proposition lodged by Deputy Hilton to return Field 621 to the Green Zone.  However, all parties were agreed that this matter should be considered on the basis of the zoning as it was in force at the date of the application i.e. as part of the Built-Up Area rather than as part of the Green Zone.  Accordingly we approach the appeal on that basis.

5.        In September 2003 an application was submitted by Mr Clifford Jones for the construction of two detached dwellings with integral garages and soft landscaping.  One of the proposed houses was to be situated in line with the existing row of houses fronting on to Route du Noirmont, with the second house being situated behind the first house and on the lower western part of the field.  The application involved what was described during this appeal as 'tandem development' i.e. access to the second house was to be reached by a drive running from the road past the first house.  The Department of Agriculture and Fisheries commented that, because of the small size of the field, there was unlikely to be any grower with large farm machinery who would wish to cultivate it.  It further commented that the loss of the field would be regrettable but ultimately left it to the discretion of the Committee. 

6.        The Planning Sub-Committee refused the application on the grounds that the scheme would be detrimental to the character and amenity of the area and would be contrary to Policies G2, G3 and H8 of the Island Plan.  The formal notice of refusal elaborated this by stating that the proposal would involve an unacceptable extension of development on a site which provides a valuable open break in the existing Built-Up Area, with sea views beyond. 

7.        By letter dated 29^th January 2004, the applicant's advocate submitted a request for reconsideration of the application.  Following advertisement of the request for reconsideration, an objection letter with a petition against the development of Field 621 signed by 43 local residents was received. 

8.        At a meeting on 6^th April 2004 the Committee maintained the refusal of the application.  However, it differed from the Planning Sub-Committee on whether any development at all should be allowed and, in accordance with the advice of its officers, it did accept that it would be appropriate to permit limited development of the site.  In a letter dated 7^th April accompanying the decision, it was stated that the Committee conceded the principle of the construction of one dwelling on the site with the size, position and design to be further discussed and with any scheme needing to meet all the requirements of the Island Plan, in particular those set out in H8, G2 and G3.  In a further letter dated 29^th April 2004, the Principal Planner emphasised to the applicant's agent, Mr Dodd, that the Committee had not condoned the construction of two units and that he could not encourage Mr Dodd to submit an application for two units. 

9.        It would appear that Almondale purchased the site from its previous owner in June 2004.  It was thus aware of the Committee's view that only one house was appropriate.  On 10^th June a second application was submitted.  Again it was for two houses, one behind the other, but there were modifications to the scale and design of the two proposed dwellings.  Responses during consultation were broadly similar to the previous application.   On 1^st September 2004 the Planning Sub Committee refused permission.

10.      Subsequently the applicant's agent submitted a request for reconsideration by the Full Committee.  The Committee reconsidered the matter on 4^th November 2004 and decided to undertake a site visit.  In due course on 20^th January 2005 the Committee decided to maintain the refusal and the Act of that date records as follows:-

"The Committee noted that it had previously considered the application to be somewhat out of character for the area, and, having seen the new visibility splays, noted that the only acceptable design for the site would be a single dwelling, low in height, set back from the road.  As the application conformed to none of these criteria, the Committee decided to maintain the refusal. 

It was noted that neither the department nor the Committee fundamentally objected to the construction of a dwelling on this site, but an application had yet to be presented which could be deemed acceptable in respect of the area."

11.      On 23^rd March 2005 a further application was submitted by Almondale.  Again it was to construct two detached dwellings in a tandem development with integral garaging and soft landscaping.  The submitted plans indicated two two-storey houses.  As previously, one was sited on the eastern front part of the site in line with the existing row of houses on neighbouring properties and the other was sited behind on the lower western part of the site.  However, the houses were sited more towards the northern side of the boundary than in the previous applications, leaving what was termed on the plans as an "open visual corridor" (i.e. the gap between the southern side of the two houses and the southern boundary of the site where there are high hedges) along the southern side of the site towards La Cotte and the sea.   According to the affidavit sworn by Mr David Sheppard, a director of Almondale, the visual corridor would be eleven metres wide by the first house narrowing to seven metres wide by the second house. 

12.      The application was advertised in the usual way.  The National Trust opposed the application and 54 letters of objection were received on grounds largely similar to those relating to the two previous applications.  These are summarised in the affidavit of Mr Webster filed on behalf of the Committee and it is fair to say that most of them objected to any development on the site.  The officers of the Committee advised refusal and on 30^th September 2005 the Committee refused permission for the requested development.  The formal notice of refusal gave the reasons as follows:-

"1.      The application site provides a valuable open break in the existing Built-Up Area with sea views beyond.  The overwhelming character of development in the area is of single dwellings in large plots with a road frontage.  This proposal by contrast includes two units one behind the other on smaller plots, and it is considered that the proposal would involve an inappropriate and unacceptable scale and extent of development which, given this particular site context, would unduly detract from the character, appearance and amenities of the area.  It therefore fails to satisfy the requirements of Policies G2(i), (ii) and (vi), G3(i) and (ii), and H8(ii), (iii) and (vii) of the Jersey Island Plan 2002. 

2.      The proposed partial re-levelling of the site and construction of the development is likely to threaten the health of the existing boundary hedges which are a feature of the site and part of the character of the area.  The scheme therefore fails to satisfy the requirements of Policies G2(i) and (vi), G3(ii) and H8(ii) of the Jersey Island Plan 2002."

Reason 1 is identical to the reason for the refusal of the second application.

13.      A supplementary explanation of the Committee's decision in a letter to Mr Dodd dated 21^st October 2005 included the following paragraphs:-

"Your client has now submitted three applications for two dwellings on this site, notwithstanding the Committee's advice on refusing the first application that if any development was to be acceptable on this site, it would comprise only one dwelling.  In the light of the latest refusal, I can only re-iterate the Committee's advice that two detached units of this nature are not acceptable on this site.    ........

The more fundamental reason however is the impact of the development on the character of the area.  In the reasons for refusal we have drawn attention to the predominant character of development in the area comprising single dwellings on large plots.  This particular site is also special in that it allows at present for a break in the existing ribbon of development and for views through to the sea and headland beyond.  Any development must take account of the special characteristics of its site and in this case that includes retaining the openness of the front part of the site and views through to the sea and headland.  This is not likely to be achieved without a large part of the site being open, so as to encourage views.  Equally any buildings must be of such a scale, and positioned in such a way, as to allow for views of the headland and the sea to be gained.

The application now refused failed in having a unit close to the road, which discouraged views through.  In addition an inadequate gap was left to the southern boundary, so views were very limited. ......."

14.      There was some discussion subsequent to the meeting between the appellant's agent Mr Dodd and the principal planner as to what might be acceptable, but we do not think it necessary to rehearse these discussions. 

Test on appeal

15.      Almondale now appeals under Article 24(1) of the Island Planning (Jersey) Law 1964 on the grounds that the decision of the Committee "............ was unreasonable having regard to all the circumstances of the case."  There was no dispute between the parties as to the correct test on appeal.  Helpful guidance, subsequently approved by the Court of Appeal, as to the meaning of unreasonable in this context was given by Bailhache, Bailiff in the case of Token Limited v Planning and Environment Committee [2001] JLR 698 at 703:-

"The Solicitor General submitted that the decision in Fairview Farm did not entitle the court to find that the Committee's decision was reasonable but quash it because the court had reached an equally reasonable but different decision.  We agree.  The court might think that a Committee's decision is mistaken, but that does not of itself entitle the court to substitute its own decision.  The court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene.  There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken.  To put it another way, there is a margin of appreciation before a decision which the court thinks to be mistaken becomes so wrong that it is, in the view of the court, unreasonable."

However the Court does not have to find a decision to have been so wrong as to become 'Wednesbury' unreasonable before it can allow an appeal (see Anchor Trust Company Limited v Jersey Financial Services Commission [2005] JLR 428 at paras 13 and 14).

The relevant planning policies

16.      The Committee's decision referred to certain planning policies as contained in the Island Plan.  We need therefore to set out those specifically referred to by the Committee.

17.      Policy H8 (Housing Development within the Built-Up Area) states that::-

"Proposals for new dwellings, extensions or alterations to existing dwellings or changes of use to residential, will normally be permitted within the boundary of the Built-Up Area as defined on the Island Plan Proposals Map, provided that the proposal;

(ii)    will not unreasonably affect the character and amenity of the area;

(iii)  will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations;

(vii)  is appropriate in scale, form, massing, density and design to the site and its context ....."

18.      Policy G2 sets out general development considerations and provides:-

"Applicants need to demonstrate that the proposed development:-

(i)   will not unreasonably affect the character and amenity of the area;

(ii)  will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations; .........

(vi)  will not have an unreasonable impact on important open space or natural or built features, including trees, hedgerows, walls and fosses;"

19.      Policy G3 (Quality of Design) is another general policy which states:-

"A standard of design which respects, conserves and contributes positively to the diversity and distinctiveness of the landscape and the built context will be sought in all developments.  The Planning and Environment Department will require the following matters to be taken into account as appropriate:

(i)  The scale, form, massing, orientation, sighting and density of the development, and inward and outward views;

(ii)  The relationship between existing buildings, settlement form and character, topography, landscape features and the wider landscape setting."

Discussion

20.      Both parties agree that paragraph 2 of the Notice of Refusal referred to a detailed planning matter which could easily be resolved if the principle of the application to develop were resolved in favour of the applicant.  Accordingly neither party addressed any argument on the matter and we shall say no more of it. 

21.      Following the hearing, the Court attended upon site with the parties and their advisers and we found this very helpful in fully appreciating the submissions made to us. 

22.      Paragraph 1 of the Notice of Refusal can be broken down into sub-divisions although the Committee's decision is to be considered in the light of its overall reasoning.  The sub-divisions can be summarised as follows:-

(i)        the site provides a valuable open break in the existing built up area;

(ii)       the site provides sea views beyond;

(iii)      the overwhelming character of development of the area is of single dwellings in large plots with a road frontage whereas the proposed development includes two units one behind the other on smaller plots; and

(iv)      for these reasons, given the particular site context, the proposed development would involve an inappropriate and unacceptable scale and extent of development which would unduly detract from the character, appearance and amenities of the area.

23.      In his affidavit, Mr Webster, Principal Planner of the Planning and Environment Department, elaborated that the Committee had two primary concerns regarding the impact of the scale and extent of development on the amenity of the area; firstly, its impact on the aspect and views through the site; and secondly, its impact on the openness of the site as a break in the existing ribbon of buildings along the road and the adverse impact of an extension and consolidation of this ribbon of development on the character and amenity of the area.  That was consistent with the letter of explanation dated 21^st October 2005 referred to at para 13 above. 

24.      We have considered carefully the contents of Mr Sheppard's affidavit and Mr Benest's very thorough skeleton argument, supplemented by his oral submission.  In briefest outline we would summarise the contentions as follows.

25.      In relation to the question of the provision of a valuable open break, Mr Benest submitted that the site had not been designated as an Important Open Space in accordance with policy BE8 of the Island Plan; on the contrary it was situated in the built up area where there was a presumption in favour of development and in any event there were other larger open spaces along the road which provided the break in the ribbon development which the Committee sought.  Furthermore, once the principle of building at least one house on the site had been conceded (as it had been) the break would no longer exist to the same extent in any event.  The break would however be retained to a substantial extent if the development were allowed because the first house was set back from the road and the plans provided for the visual corridor along the south side of the site looking past the two houses towards the sea and La Cotte in the distance.  He further submitted that the Committee had placed undue weight upon the desire to preserve the open break given that it could only be appreciated by the public from La Route de Noirmont and the site was situated at a point on the road where there was a bend and no pavement.  Accordingly, it was not easy for the public to appreciate any open break or view as they travelled along the road. 

26.      As to the sea view, Mr Benest submitted that the Island Plan did not give protection to sea views except in the Shoreline Zone (Policy BE11).  In any event, he contended, as shown in the photographs annexed to Mr Sheppard's affidavit (which are taken looking west and have sought to give an indication of the proposed visual corridor by the placing of scaffolding in the approximate position of the two houses although the height of the scaffolding is not accurate), the view is obstructed by tall evergreen trees and bushes over the northern part of the western boundary and the view over the remaining part would be substantially preserved by means of the visual corridor referred to earlier between the southern side of the two houses and the southern boundary of the site.  Furthermore there is a eucalyptus tree in the centre of the land lying to the west of the site which will grow at approximately five feet a year and will therefore obstruct the view in any event in the future.  He further submitted that the view would not be adversely affected to a materially greater extent by allowing two houses rather than the one house contemplated by the Committee. 

27.      As to the point concerning the character of the development, Mr Benest submitted that the application for two houses was in keeping with the character of the area.  Thus the two plots would each have an area of approximately 1425 sq mtrs whereas the seven closest plots to the site had an average size of 1300 sq mtrs.  The application therefore maintained the character of a reasonably sized house in a large plot.  Furthermore, as shown in the aerial photographs annexed to Mr Sheppard's affidavit, the two properties immediately to the north were situated one behind the other and the property immediately opposite the site on the other side of the road (the east) were situated one behind the other with the driveway for the rear house running alongside the roadside property.  It was wrong therefore to say that the proposed development was out of keeping with the general character of developments in the area.  Mr Sheppard also referred in his affidavit to other developments further away on La Route de Noirmont. 

28.      In summary, Mr Benest submitted that the development would not unduly detract from the character, appearance and amenities of the area.  He emphasised that the various planning policies quoted earlier regularly used the word 'unreasonable' e.g. Policy G2(i) "...... will not unreasonably affect the character and amenity of the area".    The two proposed houses were consistent with the surrounding properties and, so far as the open break and view were concerned, the visual corridor would preserve these two aspects as far as possible and, to the extent that there was any impact on these aspects, the impact would be just as great in the event of one house being built in accordance with the Committee's preferred solution.  There was therefore no good reason to reject the application and the Committee's refusal had not only been mistaken but was unreasonable. 

29.      We have carefully considered the appellant's submissions but in our judgment, the decision of the Committee cannot possibly be categorised as unreasonable.  Our reasons briefly are as follows:-

(i)        It is of course correct for the appellant to state that the site has not been designated as an Important Open Space and does not fall within the Shoreline Zone.  However that does not mean that the question of sea views and the provision of an open break need be ignored.  In Guillou v Island Development Committee [1969] JJ 1225 the Court made reference to the definition in the Shorter Oxford Dictionary of 'amenity' as being "the quality of being pleasant or agreeable" and further noted that 'pleasant' is defined as "agreeable to the mind, feelings, or senses."  The Court went on to say that amenity should be interpreted in a wide sense so as to include more than just visual matters.  In the Island Plan itself amenity is described as "pleasantness of situation, attractive features of the locality".  In our judgment, sea views and an open break in ribbon development are undoubtedly matters which may contribute to the amenity of an area and accordingly the Committee was entitled to have regard to such matters when considering the effect of the proposed development upon the amenity of the area. 

(ii)       The Committee has made clear that the two considerations which have weighed with it most heavily are the preservation of a valuable open break in the ribbon development along the road and the preservation of the distant view to La Cotte and the sea.  We are quite satisfied that the Committee was entitled to conclude that these two aspects contribute materially to the amenity of the area.  The fact that there are other open breaks further along the road and that these aspects are only experienced by those walking or driving along the road does not render this conclusion unreasonable.  On the contrary, it can properly be said that these two aspects are 'an attractive feature of the locality'. 

(iii)      The first house is a two-storey house approximately twenty foot high.  Although set back from the road, it will inevitably impair substantially the open break referred to by the Committee.  Similarly, although there will be a gap of eleven metres to the south of the first house (where the drive to the second house will pass) and a gap of seven metres between the southern boundary and the second house, so that there will be a visual corridor between the southern boundary and the houses as described earlier, the Committee was, in our judgment, fully entitled to conclude that the view presently available across the site will be substantially impaired.  The view through the corridor would be much narrower and more limited than the current aspect.  The fact that it is possible that a tree growing on other land to the west of the site might one day by natural growth also impair the view is not, in our judgment, a reason for saying that the development should therefore be allowed.  It is impossible to know what may occur in this respect in the future and in any event a possible impairment from natural causes of a view at some time in the future does not necessarily lead to the conclusion that it is appropriate to obscure the view to a much greater extent immediately by allowing a development. Because of the impact upon the open break and the view, the Committee was, in our judgment, perfectly entitled to find that the development would unreasonably affect the character and amenity of the area.

(iv)      Almondale has placed much reliance upon the submission that the damage to these two key aspects relied upon by the Committee will occur even if, as the Committee would allow, one house is built on the site; and that accordingly it is unreasonable to disallow the application for two houses.  The Committee's preference is for one house to be built on lower ground much further to the west than the first house and for that house to be of lower height and situated more to the north of the site.  In our judgment, it was eminently reasonable for the Committee to conclude that the construction of such a house in such a position would interfere with the open break and the sea views to a very much lesser extent than the construction of two dwellings as proposed. 

(v)       Although this point was not put at the forefront of the Committee's reasons for rejection and although the suggestion that these would be smaller plots than those in the area may only be accurate in respect of a small number of plots to the south, the Committee was in our judgment entitled to regard the 'tandem' development of two properties as not being in keeping with the surrounding properties, at any rate on the western side of the road.  The three sites to the south consist of only one property and although there are two properties, one behind the other, immediately to the north, access to the western of those properties is not gained through the eastern property.  It is not therefore a 'tandem' development.   We are not sure that that this reason would have been sufficient ground to refuse the application had it stood alone, but that question does not arise in view of our decision on the main grounds of the Committee's decision. 

(vi)      Mr Sheppard appeared to raise a possible argument on inconsistency in his affidavit by reference to certain other developments which have been allowed on other sites on La Route de Noirmont.  However Mr Benest did not pursue these and in our judgment he was right not to do so.  The limits of an argument on alleged 'inconsistency' have been authoritatively dealt with by the Court of Appeal in Trump Holdings Ltd v Planning and Environment Committee [2004] JLR 232 and there is no evidence before us to suggest that the other sites referred to by Mr Sheppard have the amenity features of the present site. 

30.      For these reasons we do not consider the decision of the Committee to have been unreasonable and accordingly we dismiss this appeal. 

Authorities

Island Planning (Jersey) Law 1964.

Token Limited v Planning and Environment Committee [2001] JLR 698 at 703.

Anchor Trust Company Limited v Jersey Financial Services Commission [2005] JLR 428 at paras 13 and 14.

Guillou v Island Development Committee [1969] JJ 1225.

Trump Holdings Ltd v Planning and Environment Committee [2004] JLR 232.